By Siddharth Peter de Souza*
This blog post is a condensed version of a longer piece. For the full version, please click here.
The complexity of legal content and its cycle of reinforcement
Can the language and medium commonly used to communicate the law be challenged? When laws are framed, written, and published, who is the audience that they aim to address? Who is being considered? If laws are meant to govern citizens, and ignorance is no excuse, then is it up to these citizens to understand the language of the law in all its opacity and density, or should the law be written in a clear and accessible manner?
The production of legal documents, texts, and judgments are part of an industry that is designed to demand technical know-how and require sophisticated command over language and nuance. Unpacking the informational density that is promoted in the law is challenging because it is a system that continues to reinforce itself as it creates experts who then create more complexity to justify their own positions. Take legal judgements as an example. Reading a judgment and trying to make sense of the language used raises the question of who a judge is writing for: the parties to the dispute? The public at large? An academic community? Or, to further a legacy? How exactly does a judge make choices about their audiences.
This innate complexity creates power structures where only those vested with the capacity to read the law are competent enough to use it and apply it. And yet the law is designed to order and impact the everyday life of lay citizens who have to understand the intricacies of the law in order to safeguard themselves, whether it be in the situation of buying and selling property, leaving a will, or even understanding the daily decisions of a particular court.
Providing legal content that can be useful, and usable, for a citizen is fundamental to enable their participation and involvement in the legal system. This is also a core component of access to justice.
Justice Adda is a social venture that uses design techniques to develop legal content that is comprehensible for the end user. Through this blog, I would like to reflect on a project we have done and the feedback we have received by making three points. The first is to argue that accessibility in legal content does not mean ‘dumbing’ down the law. The second is to advance that the medium through which the law is communicated does not have to be constrained to only textual solutions but can engage in other media that speak to the constituencies that are most affected by it. And the third is to emphasize that when legal content is created it needs to be more clear about whom it is speaking to, and not propound reform and access to justice, if the way it is communicated is inherently contradictory.
Vernacularizing the law in this sense, is a method of presenting the law in a manner that considers how those that are impacted by it will find it understandable. It seeks to embed arguments for accessibility in the construction of the legal instrument itself. This means that when a document is written, it does so by reflecting on the user, and the medium that they will require in order for the content to be useful for them, and such that they can make sense of it in practice.
Accessibility not does mean losing nuance
One of the misconceptions of building accessibility into legal instruments is that you can only do so by ‘simplifying’ the complexity of the legal argument. However, I would argue that the challenge is different. It is instead the process of identifying the need of a particular legal document or text, the value that such a text has for a particular group of people, and finding how they will use it in their everyday practice. If the purpose of a legal text is only to provide explanation, or knowledge, for lawyers or academics that study the law then this is inherently problematic. This is because lawyers are not the end users of such content. They, instead, use this content to customise it to a client’s needs. Constructing content with an end user’s (client’s) interest in mind does not devalue or eliminate the role of a lawyer. It just makes the process, and the relationship between client and lawyer, one that is not based on asymmetric information, but rather empowers the client to be able to engage with how such content can impact their everyday use of law.
In a project designed to unpack judgments of the Supreme Court of India, which have a public interest value, Justice Adda attempted to understand what were the key elements that needed to be communicated in a case to make the knowledge around the case useful and usable for an end user, in this case a lay citizen. Through studying other projects that focussed on communicating the law, and what information was essential for everyday practice, the project focussed on reframing the language, on visual representation, and on brevity in its representation of the case being discussed. An example from the project is displayed below. It highlights three key aspects: (i) the facts of the case, (ii) the questions of law, and (iii) what the court ruled. These needed to be communicated.
While the project does attempt to communicate the law in a more accessible manner, some of the feedback that we received was that the language could be simplified further. It continues to be a work in progress.
Thinking of accessibility of communication while drafting the original content, ensures that accessibility is not seen as a process of distillation or interpretation but is rather regarded as being very much part of the construction of the content in the first place. Doing so, will ensure that content creators- whether lawyers, judges or policymakers – are forced to confront the end-user while producing such content.
More than text
Most legal content in the official legal system (state law) is produced in the form of text. However, if we are to reflect again on how people consume content, text is just one of many options. With the advent of technology the mediums through which we can consume content has increased exponentially. If law is meant to be used and understood, can the medium through which it is communicated be chosen based on user preferences of convenience, opportunity and need.
A common feature of most of the textual mediums is that they are riddled with detail and technicality. As a result – the overarching goal of a text (i.e. the message it wants to communicate) can be lost in the details. With this project, while the medium chosen was meant to introduce different ways of presenting and of speaking about law and justice issues, there was also an acknowledgement that such content is still not seen as mainstream, but rather as interpretation of other discourses. A takeaway from the project is that while we presented the content as being ‘different’, it was important not to showcase this work as ‘alternative’ but rather as an equally useful ‘option’ to engaging with everyday legal issues. Only then would the reluctance of moving beyond text be confronted.
Who are we talking to?
To conclude, a common theme in this blog post has been to identify who the end user is. Thinking about mediums and questions of accessibility stem from changing the way we approach the production of legal content. It requires a change from a supply-oriented approach where the providers speak a language that is convenient to them, to a user-oriented approach which thinks more in terms of the audience. It would be completely contradictory to propound principles of access to justice when such principles are offered in a language that is inherently exclusionary and in mediums that require translation and interpretation.
Using avenues for interpretation by lawyers, or translations by other experts, is not enough because then the content is designed to facilitate the legal industry and not the needs of lay citizens.
*Siddharth Peter de Souza is the Founder of Justice Adda and a PhD candidate in Law at the Humboldt University of Berlin